A. THE RENEWED APPLICATION UNDER SS. 7 AND 11(D)

Transcription

1 Ontario Supreme Court R. v. Court, Date: Regina and Court and Monaghan Ontario Court (General Division), Glithero J. June 30, 1997 Jack L. Pinkofsky, for applicant, Graham Rodney Court. James C. Fleming, for applicant, Peter Denis Monaghan. Brian P. O Marra and James Cornish, for the Crown, respondent. [1] GLITHERO J.: Both accused apply for a judicial stay of proceedings of this first degree murder charge. On behalf of each accused, there are two applications before me, as follows: (a) An application to have me reconsider my ruling delivered December 9, 1996 on the basis of Supreme Court of Canada judgments delivered since then on the issue of when a judicial stay of proceedings is appropriate for a breach of the applicants rights under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms; (b) An application for a judicial stay of proceedings as the appropriate remedy under s. 24(1) of the Charter for an alleged breach of ss. 11(b) and 7. [2] There is some overlap between the two applications as the prejudice of the right to make full answer and defence and of the right to a fair trial require consideration of the effect of delay on the right to be tried within a reasonable time. As these two applications were argued at the same time, and as they raise some common considerations, I propose to deal with both applications in this one ruling. [3] My earlier reasons reviewed the evidence, the evidentiary issues, and the background of this case in some length. I do not propose to review, in this ruling, those matters other than is necessary to adjudicate upon the present applications. A. THE RENEWED APPLICATION UNDER SS. 7 AND 11(D) [4] Prior to the present applications being launched, no further steps had been taken in this trial following my ruling of December 9, 1996, other than an application for bail on behalf of Mr. Monaghan which was determined on December 23, The next pre-trial motions

2 scheduled were an application for severance of the trial of the two accused, and an application for bail on behalf of Mr. Court. They were scheduled to be heard on February 13 and 14, On February 6, 1997 the Supreme Court of Canada rendered judgment in R. v. Carosella, [1997] 1 S.C.R. 80, 41 C.R.R. (2d) 189, 112 C.C.C. (3d) 289. Prior to court reconvening on February 13, 1997 defence counsel gave the Crown and the court written notice of their intention to seek a reconsideration of my earlier ruling as a result of the Carosella decision. On February 13, 1997, with the consent of the Crown, submissions began but were not completed. On that same date the Supreme Court of Canada rendered judgment in R. v. MacDonnell, [1997] 1 S.C.R. 305, 114 C.C.C. (3d) 145. The next day, February 14, 1997, the Supreme Court of Canada gave a decision in R. v. Wicksted, [1997] 1 S.C.R. 307, 113 C.C.C. (3d) 318. The submissions before me proceeded taking into account those decisions and others since released by the Supreme Court of Canada. [5] The Crown concedes that it is appropriate to revisit my earlier ruling in light of these decisions. I agree, as these judgments impact on situations of non-disclosure and on instances of lost evidence, both of which are relevant in this case. In addition, and importantly in my view, these recent cases to some extent reverse the principles set forth in R. v. O Connor, [1995] 4 S.C.R. 411, 33 C.R.R. (2d) 1, 103 C.C.C. (3d) 1, and further modify or clarify the manner in which those principles are to be applied. [6] The Crown submits that it would be inappropriate to change or modify any of the findings of fact made in my earlier ruling. I agree, and I do not propose to do so. To the extent that these recent decisions either change the law, or modify the proper approach to be taken in such cases, or lead me to conclude that I erred in my earlier determination of the issue, I believe it appropriate to revisit the issues raised in these proceedings. Carosella [7] In Carosella, the majority judgment of the Supreme Court of Canada reinstated a stay of proceedings granted at trial as a s. 24(1) remedy for a breach of the accused s s. 7 and s. 11(d) rights. After the accused had been charged, and after his preliminary hearing, a sexual assault crisis centre had destroyed notes of an initial interview of the complainant conducted prior to the laying of charges. No written account of the interview remained in existence, and staff at the crisis centre had no memory of the content of the interview. The destruction of the notes was the result of a policy decision and was done so that the material

3 would not be available for use in court. The policy was undertaken in respect of many files where there was police involvement, but was done before any application had been made for production of the file. [8] The majority held that an accused is not required to demonstrate actual prejudice to the conduct of his defence in order to establish a breach of ss. 7 or 11(d) as a result of nondisclosure or non-production of relevant material. The extent to which the Charter violation has prejudiced the accused is to be considered only at the remedy stage under s. 24(1). Failure to disclose and produce material meeting the threshold established in R. v. Stinchcombe, [1991] 3 S.C.R. 326, 18 C.R.R. (2d) 210, constitutes a breach of the accused s constitutional right without any additional showing of prejudice. [9] The majority held that it was not only within the non-reviewable ambit of the trial judge s discretion to order a stay, but that he was correct in so doing. The majority found that it was one of the clearest of cases, as credibility was a major issue, and that the loss, through deliberate destruction, of the initial interview notes impaired the accused s ability to make full answer and defence, even though other materials existed upon which the complainant could be cross-examined. The destroyed notes represented the complainant s first account of what had happened, given prior to investigation and the inability to have recourse to the notes of the interview was prejudicial and that that prejudice was not rectified by the availability of other materials upon which to cross-examine. The majority found that there was no alternative remedy to cure that prejudice, and that the integrity of the judicial system was prejudiced irreparably by the deliberate destruction of evidence which might be required for court purposes. Sopinka J. concluded at p. 114 S.C.R., p. 211 C.R.R. that [i]t is this feature of the appeal in particular that distinguishes this case from lost evidence cases generally. Irremediable prejudice to the accused s right to full answer and defence, and irreparable prejudice to the integrity of the judicial system are alternative factors, the presence of either, or obviously both, justifies a stay in the clearest of cases. [10] The majority held that in O Connor the judgment of L Heureux-Dubé J. was not a majority judgment, other than as to result and that her ruling that actual prejudice must be demonstrated in order to constitute a Charter breach was at least left open on a proper interpretation of the various judgments.

4 [11] The majority further held that the measure of relevance is to be determined in the wider context of the usefulness of the evidence to the defence, whether for the purpose of crossexamination on the statement, or as a foundation for cross-examination, or as the source of other information useful to the defence. The court recognized that without the missing material, it was difficult to catalogue the precise use which could have been made of the missing material. The prejudice to full answer and defence was not restricted to situations where the missing evidence would have been necessarily admissible at trial. It was sufficient that the missing material, on a balance of probabilities, represented the loss of a realistic opportunity to garner evidence, or make decisions about the defence. [12] At pp S.C.R., pp C.R.R., the majority speaks of the possible uses that might have been made of the information in the destroyed notes, and in my opinion makes it clear that the relevance and materiality of the information is not dependent upon it being admissible at the trial directly, nor that the information was necessarily usable as a basis upon which to directly confront a witness at trial. [13] On the question of whether a stay was warranted, the majority found not only that that remedy was properly within the discretion of the trial judge, but at pp S.C.R., pp C.R.R., expressly found that the trial judge had reached the right result in the case. [14] In considering the principles applicable to a stay as the appropriate remedy, the majority chose the following passage from O Connor as being appropriate (at p. 112 S.C.R., C.R.R.): It must always be remembered that a stay of proceedings is only appropriate in the clearest of cases, where the prejudice to the accused s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. [15] Although other accounts of the events in question by the complainant were available as a basis for cross-examination, the majority found to be important the absence of any alternative remedy that would cure the prejudice to the accused s ability to make full answer and defence, and also that there would be irreparable prejudice to the integrity of the judicial system if the prosecution were allowed to continue. [16] At p. 114 S.C.R., p. 211 C.R.R., Sopinka J. held that:

5 Confidence in the system would be undermined if the administration of justice condoned conduct designed to defeat the processes of the court. The agency made a decision to obstruct the course of justice by systematically destroying evidence which the practices of the court might require to be produced. [17] The majority judgment ends by noting that it was this deliberate destruction of evidence for the purpose of making it unavailable in court which distinguishes this case from lost evidence cases generally. [18] The majority restored the decision of the trial judge which was made on a pre-trial motion on the basis of evidence admitted on consent together with testimony called on the application, and did not require that the decision be made only after all the evidence, or at least that of the Crown, had been heard at trial. MacDonnell [19] The Supreme Court of Canada restored the trial judgment, holding that the trial judge was correct in finding a breach of the right to make full answer and defence and that he did not err in exercising his discretion to order a stay. The charge was one of murder, arising from the death approximately 30 years earlier of a child in the accused s care. The death had originally been ruled accidental, but the transcript of the evidence given at the inquest was no longer available, and the surgeon who had treated the deceased and the medical examiner who performed the autopsy were both deceased. One of the two investigating officers was also deceased, and the police files of the original investigation were not available. The original hospital and autopsy medical reports were still available, and the Crown proposed to elicit evidence from medical experts whose opinions were based on the still-existing reports. [20] The Supreme Court of Canada judgment overruled that of the Nova Scotia Court of Appeal, which had held that there was no air of reality to the accused s claim of prejudice as the accused was unable to show exactly how the loss of evidence prejudiced her rights, as without the evidence, the accused was unable to demonstrate specifically that portions of the missing material assisted her, and precisely how she was prejudiced by the unavailability to access the contents of the lost material. The Court of Appeal had held that the accused, at least at the stage of the pre-trial application for a stay of proceedings, had failed to

6 demonstrate prejudice such as to constitute a Charter breach, or as justifying a stay of a murder charge. [21] Significantly, this case involved the loss of evidence resulting from its destruction owing to the passage of time. There was no suggestion that the evidence had been destroyed deliberately by an agent of the state. Wicksted [22] Here the Supreme Court of Canada upheld the judgment of the Ontario Court of Appeal which had found a breach of the right to make full answer and defence but that a stay of proceedings was not the appropriate remedy. The court disapproved of the phrase air of reality to describe the degree of relevance required in order to trigger the obligation to disclose or produce. The Court of Appeal ruled that the fact that the investigating officer did not record, in some cases all, and in others part of, the interviews with witnesses did not result in such prejudice as to warrant a stay of proceedings. An adjournment was a sufficient remedy so as to permit the defence to consider the newly disclosed evidence relevant to the cross-examination of an important Crown witness. There was no evidence that any information relevant to the charges remained undisclosed. The thrust of the Crown s case depended on financial and business records. There was no evidence that the officer failed to record or to disclose any information for the purpose of prejudicing the accused. Effect on O Connor [23] The judgment of L Heureux-Dubé J., requiring a demonstration of prejudice before non-disclosure amounts to a Charter breach (p. 464 S.C.R., p. 25 C.R.R.), was expressly rejected by the majority of the Supreme Court of Canada in Carosella. [24] Justices Cory and Iacobucci concurred in the Carosella judgment of Sopinka J. as to his interpretation of the effect of the various judgments rendered in O Connor. [25] O Connor was not a lost evidence case, but rather a non-disclosure case involving improper Crown conduct. [26] The judgment of L Heureux-Dubé J. imposing as a criterion for a stay that there must be no other remedy that is reasonably capable of removing that prejudice must be considered together with the majority judgment in Carosella which held to be important the

7 absence of any alternative remedy that would cure the prejudice (p. 113 S.C.R., p. 210 C.R.R. emphasis added). In argument before me reliance is also placed on the judgment of Sopinka J. as it chose to rely on a passage from O Connor, which I have quoted earlier, in which L Heureux-Dubé held a stay to be appropriate only in the clearest of cases, where the prejudice to the accused s right to make full answer and defence cannot be remedied. L Heureux-Dubé J., joined by La Forest, Gonthier and McLachlin JJ., found that there was no Charter breach of the accused s right to make full answer and defence (pp S.C.R., pp C.R.R.) whereas Lamer C.J.C., Sopinka and Major JJ. found a breach of the accused s Charter rights and a Charter abuse of process. Cory and Iacobucci JJ. held that the reprehensible conduct of the Crown was not such as to warrant a stay of proceedings, but did not deal further with the principles applicable to a Charter breach or applicable to a stay of proceedings. [27] O Connor was a case of late disclosure, and non-disclosure, of information from third parties in the hands of the Crown, which fully came to light on the third day of trial. O Connor did not involve a failure to disclose the fruits of an investigation undertaken by agents of the state (pp S.C.R., p. 29 C.R.R.). [28] L Heureux-Dubé J. held that a finding that the non-disclosures were material might have supported an inference that the Crown was actively hiding information that was material to the defence without further commenting on what would result from such an inference or finding. She further held that the non-disclosure resulted from inadvertence, lack of communication, or inability to fulfill voluntary disclosure. She was of the view that there is no evidence that any delays were the result of Crown non-disclosure, or that if there were, the accused was not incarcerated in any event (pp S.C.R., p. 30 C.R.R.). Other Recent Cases [29] On March 20, 1997 the Supreme Court of Canada gave judgment in R. v. Buric, [1997] 1 S.C.R. 535, 42 C.R.R. (2d) 187, 114 C.C.C. (3d) 95 and held that Carosella had no application to that case because, inter alia, there is no finding by the trial judge nor any evidence which would justify the conclusion that the police failed to make a record deliberately to avoid production. This may be seen as restricting the scope of Carosella to situations involving deliberate state conduct designed to withhold evidence from the trial process, as opposed to cases involving through misadventure.

8 [30] On March 13, 1997 the Supreme Court of Canada in R. v. La (appeal by Vu), [1997] S.C.J. No. 30, dismissed an appeal, with reasons to follow [reported (1997), 44 C.R.R. (2d) 262, 116 C.C.C. (3d) 97], wherein the Alberta Court of Appeal had set aside a stay of proceedings ordered at trial. The reasons were released on June 26, In that case a police officer had taped an initial conversation with a young person in preparation for a secure treatment order. The conversation apparently related to her lifestyle and involvement in prostitution. The officer taping the conversation was not involved in the subsequent prosecution of the accused on some prostitution-related charges. Prior to trial, the officer lost the tape and could not find it. Evidence was led as to stressful circumstances for that officer during the time period in which the tape went missing. The officer was able to recall that during the taped conversation the young person had referred to a hotel, which was apparently relevant to the issues at trial, and that in the tape the young person had told a few lies. [31] The issue was whether the loss of this taped conversation justified the stay of proceedings ordered at trial, and whether the Crown had breached its disclosure obligation by reason of its inability to provide the tape lost through innocent inadvertence. The court concluded that the Crown s disclosure obligation includes an obligation to preserve relevant evidence, and that where disclosable evidence has been lost, the Crown has a duty to give an explanation. If the explanation provided satisfies the trial judge that the evidence was not destroyed or lost owing to unacceptable negligence, there is no disclosure breach. If the explanation is unsatisfactory, a s. 7 breach results, and may also justify a finding of abuse of process. In assessing the Crown s explanation, the court should analyze the circumstances surrounding the loss, whether reasonable steps were taken to preserve the evidence, the perceived relevance of the evidence at the time, and the reasonableness of the police conduct. An abuse of process will occur where there has been a deliberate destruction of material for the purpose of defeating the Crown s disclosure obligation, or where there has been an unacceptable degree of negligent conduct in respect of the loss, even absent proof of improper motive. In addition, whether or not there has been a breach of the duty to disclose, the loss of the evidence may be so prejudicial as to impair the right to a fair trial if actual prejudice is demonstrated. [32] Specifically, at p. 265 C.R.R., Sopinka J. for the majority held that:

9 I find that when the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. So long as the explanation is satisfactory, it discharges the Crown s constitutional obligation to disclose. There will, however, be a breach of the Canadian Charter of Rights and Freedoms if the explanation does not satisfy the trial judge. Moreover, I would not rule out a remedy in the extraordinary case in which a satisfactory explanation is given for the loss of evidence and no abuse of process is found, but the evidence is so important that its loss renders a fair trial problematic. [33] And at p. 269 C.R.R., the majority held: Where the Crown s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. [34] And at pp C.R.R., the majority states: In order to determine whether the explanation of the Crown is satisfactory, the court should analyze the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. [35] The court further held at p. 270 C.R.R. that: The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown s obligation to disclose the material will, typically, fall into this category [abuse of process]. An abuse of process, however, is not limited to

10 conduct of officers of the Crown which proceeds from an improper motive: see R. v. O Connor (1995), 33 C.R.R. (2d) 1 at pp , [1995] 4 S.C.R. 411 at pp , per Madam Justice L Heureux-Dubé for the majority on this point. Accordingly, other serious departures from the Crown s duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established. In some cases an unacceptable degree of negligent conduct may suffice. [36] At p. 271 C.R.R., the majority held that: Even where the Crown has discharged its duty by disclosing all relevant information in its possession and explaining the circumstances of the loss of any missing evidence, an accused may still rely on his or her s. 7 right to make full answer and defence. Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy, provided the criteria to which I refer above have been met. [37] At p. 272 C.R.R., the majority expressed its view that it will usually be preferable to reserve on any such application until some or all of the evidence has been heard, but that a trial judge has a discretion as to whether to rule on the application for a stay immediately. [38] Of importance in that case was the fact that the conversation in question was not taperecorded for purposes of a criminal investigation, but rather in respect of the treatment application, and was not a detailed conversation, and was made prior to the commencement of a criminal investigation in which the officer was never involved. [39] In yet another decision involving some of these issues, on March 20, 1997 the Supreme Court gave judgment in R v. Curragh Inc. (1997), 113 C.C.C. (3d) 481, 42 C.R.R. (2d) D-5. There a stay had been directed at trial based upon non-disclosure and late disclosure. The majority judgment in the Supreme Court of Canada found that the stay order was retroactively rendered void by reason of a reasonable apprehension of bias on the part of the trial judge. In a minority judgment, Justices McLachlin and Major addressed the test for a stay of proceedings as an appropriate remedy for an abuse of process in part by reference to the majority decision in O Connor which at p. 465 S.C.R., p. 26 C.R.R. adopted the views of Professor Paciocco as follows:

11 (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. [40] The majority however expressly refrained from commenting upon the facts or the issues and indicated that the majority s views could well be different than those of the minority [41] The same author, Professor Paciocco, has now expressed his views as to the impact of Carosella and some of the other recent cases. In his article The Long-Term Impact of Carosella, the Sexual Offences Law Reporter, February 1997, vol. 3, issue 8, in analyzing Carosella and the issue of remedy, at p. 220 the author notes that it [the majority judgment] tells us, above all else, that the decision whether the accused has discharged the burden of establishing prejudice has to be undertaken with sensitivity to the fact that he will not have access to the lost evidence. He cannot, therefore, be expected to identify the specific relevance that the evidence would have. It is enough if, by its general nature, the evidence is such that it is probable that it would have been helpful to the accused in making full answer and defence and reinforces his view by reference to MacDonnell, arguing that that case makes it even clearer that the search is to be based on the general nature of the records, in all of the circumstances. [42] Similarly in his article In Defence of R. v. Carosella: The Continuing Need for Prejudice, 4 C.R. (5th) 199, Professor Paciocco expresses the following opinion at p. 204: Two important points need to be made about prejudice and remedy. First, as the decision in Carosella illustrates, the assessment of prejudice for the purpose of identifying a remedy has to be undertaken with sensitivity to the reality that to require a particularized showing of what the non-disclosed and lost material contains, or of the particular uses to which it would be put, would make the constitutional right meaningless. A determination of prejudice is to be based on the general nature of the unavailable information, in all of the circumstances. Second, prejudice to the accused is not required for a stay that is based on preventing irreparable harm to the administration of justice. But then again, why should it be? The interest being protected by such a stay is the repute of the administration of justice. In such cases the stay represents a forceful expression of the disapproval of the impugned conduct and, like the exclusion of unconstitutionally obtained evidence, is intended to prevent future abuses. To insist on

12 prejudice to establish the Charter right would deprive the courts of the opportunity to perform this important function. Effect of the Recent Cases [43] Cases involving the loss or destruction of material beneficial to the defence differ from those involving late disclosure in that the former are not usually remediable by an order for production and an adjournment, whereas the latter usually are. No demonstration of actual prejudice is necessary to the finding of a s. 7 or s. 11(d) breach, as prejudice is to be assessed at the remedy stage of the analysis. In lost evidence cases, one must consider the impact of the loss on the defence, without requiring a specific enunciation of the prejudice caused. The prejudice may result from the inability to actually use the materials in crossexamination, or to use them as the foundation for cross-examination, to point to other opportunities to garner evidence, or to benefit the defence in making appropriate decisions relevant to the conduct of its case. Rather than requiring the defence to demonstrate the specific prejudice arising from the loss of the material which is no longer available, the defence can meet its onus by persuading the court to conclude, on the basis of the general nature of the records, what is known of them, of the circumstances surrounding the creation of the records, and of the facts in issue in the case, that prejudice has occurred to the defence ability to make full answer and defence. It is not necessary that the lost evidence be in itself directly admissible at trial. Where there is deliberate action by an agent of the state to withhold information of potential benefit to the defence, or the purposeful destruction of relevant evidence, or an unacceptable degree of negligent conduct resulting in the loss of evidence, a stay of proceedings becomes more likely. Even where the loss of evidence is not the result of deliberate action or design, but rather the product of the passage of time, a stay will be warranted where the prejudice to the defence cannot be remedied, and the clearest of cases test is met. [44] In the end result, each case must obviously be determined on its own merits, having regard to the facts as found and the application of the discernible principles to those facts. The December 9 Ruling [45] It will be obvious from my review of the recent cases and their effect on O Connor that some portions of my earlier ruling under the title Legal Principles were in error. Similarly, the

13 recent cases of MacDonnell and La, and to some extent Carosella, impact on that portion of my ruling entitled Lost Evidence Cases. [46] In my opinion the recent cases require that I review my earlier ruling to determine whether any of the specific evidentiary issues constituted a breach of ss. 7 and 11(d) rights, given that prejudice is not required to be demonstrated to make out a breach. I believe I am also required to reassess the nature of the prejudice, in respect of each evidentiary issue, and cumulatively to determine whether a stay ought to be granted. [47] I believe it also necessary to consider other additional evidence elicited before me on the ss. 11(b) and 7 application, which evidence proved to have relevance to the renewed application under ss. 7 and 11(d) as well. That evidence relates to alleged non-disclosure by the Crown during the appeal process, and thereafter, to continued non-disclosure by trial Crown counsel following the order for a new trial by the Court of Appeal. Prejudice arising from appellate delay has been held to be an issue to be addressed under s. 7 of the Charter, rather than under s. 11(b). The alleged non-disclosure during the appeal process is related to the lost tape issue, one of those I originally canvassed in the earlier ruling. The alleged continued non-disclosure of the material said to be relevant during the appeal process, following the appeal judgment ordering a new trial, is state action occurring while the case was again before this court, and hence properly a ss. 7 and 11(d) issue. [48] Finally, it will be necessary to reconsider the abuse of process aspect of the application. [49] In reconsidering the various evidentiary issues, I do so in summary form only, as I rely on the December 9 ruling as a means of setting forth the evidence and the issues. The Lost Audiotape of November 29, 1989 [50] For reasons given in the earlier ruling, I determined that Monaghan had demonstrated that the conversation on the lost tape contained a denial by him of the killing. I further concluded that the tape had been copied, and that the police knew in December 1989 that the tape and the copy could not be found. I further found that MacMillan knew of the nonavailability of the tape at the time he met with McWatt as a result of her request to hear all the tapes, that he did not so advise her, and that he was aware the tape could not be found at the time of the April 15, 1991 pre-trial motion at which Harris testified and defence counsel

14 specifically enunciated their position that the tape contained a denial and that the defence sought access to it. I further found that Harris was evasive and misleading in his answers under oath on that pre-trial motion. I also determined that the defence was misled into believing that the tape existed, but contained no conversation about the murder. I concluded that the issue involved a breach of the ss. 7 and 11(d) Charter rights. I was not prepared to find that trial Crown counsel was aware of the unavailability of the tape, but that the police were and that their failure to be forthright on the issue was abusive. [51] Additional evidence has been elicited since my earlier ruling. That evidence surfaced as a result of the filing by the Crown of an affidavit by Crown appellate counsel Ms. Cooper in response to the defence s. 11(b) application, which affidavit referred to documents previously undisclosed. Upon receipt of the affidavit the defence chose to cross-examine Ms. Cooper and sought and received production of additional materials from the Crown appeal file. Ms. Cooper, as well as Ms. Manarin, who assisted on the appeal, and Mr. Gunn, then an articling student with the Crown law office, all gave evidence before me. While their evidence primarily was directed to the delay issue, other evidence relevant to the lost tape was also elicited. The fresh evidence application, relating to the lost tape issue, was a major factor in the appeal, and accounted for some delay in the appeal being heard. I will refer to the delay aspects of the evidence later. In terms of new evidence relevant to the loss of the tape, it is clear that the Crown law office appreciated that Monaghan s appellate counsel was pursuing the issue of the November 29th tape, and equally clear that the Crown law office appreciated that the initial information received from the police was unsatisfactory, contradictory, and incomplete. In order to meet the defence request and expected fresh evidence application, the Crown law office took the somewhat unusual step of initiating its own investigation as to the circumstances surrounding the tape. Initially they obtained statements from the officers involved, then commissioned Detective MacMillan to prepare a report on the issue, and eventually had the police officers involved in the issue attend at the Crown law offices to review the written materials available, and to answer inquiries about the lost tape issue. This process resulted in the creation of the affidavits by officers Harris, MacMillan, Moore and McCoy as filed before the Court of Appeal. The efforts of the Crown law office to get to the bottom of the mystery involved requests for assistance from the Crown law office in Milton. [52] The mystery about this tape, created by the police, persisted well into the appeal preparation process. Whereas Mr. Koziebrocki had requested access to the tape in

15 September 1993, it was not until June 1994 that the Crown law office finally learned from the police that the tape had existed but was missing. The issue of who knew it was missing, and when it was learned to be missing, was still unclear. The manner in which the police responded to various Crown requests was perplexing to the appellate Crown, and caused them to be concerned as to whether the confusion simply resulted from miscommunication, or whether in fact the police were being deliberately evasive, stonewalling or creating a calculated ambiguity. In response to Mr. Koziebrocki s first request for access to the tape, the Crown law office initially erroneously advised him that trial defence counsel had all the material and he could obtain it from them, which information had been received from Mr. Cornish, who in turn had relied on the police. [53] The police officers involved in the tape issue were called in individually to the Crown law offices so that affidavits for the fresh evidence application could be obtained. This exercise was conducted by Ms. Manarin with Mr. Gunn s assistance. Ahead of time, a brief was compiled for each officer containing such information as was available concerning his participation. Each officer was then interviewed by Ms. Manarin, questioned about certain aspects of the issue, and draft affidavits were created. Such draft affidavit would then be reviewed with the officer, and further matters reviewed, and a subsequent draft affidavit would be prepared, all while the officer was still present. By this process, the result was a final affidavit preceded by several draft affidavits. [54] Mr. Gunn was present during these interviews and assigned the task of keeping notes. Previously he had reviewed all the transcripts from this case and summarized them. It is clear from his evidence that he appropriately had concerns as to the veracity of the officers providing information on this issue, and expressed such concerns to the appellate Crowns. His notes of the interviews of the various officers are admittedly not verbatim, but he believes accurate in terms of capturing the gist of the conversations. [55] According to Mr. Gunn s notes of the interview with officer Moore on December 21, 1994, Moore indicated that to the best of his recollection he received the tapes from Officer McCoy the following day, although he could not swear to it. He also indicated that he was not sure what had happened to the tape until it became an issue at trial. He later indicated that his best knowledge was that he became aware the tape could not be located in late December 1989, and that he spoke to Harris, McCoy, and a Supervisor Pearson about the

16 tape being missing. He further confirmed that the loss of the tape was a hot topic of conversation amongst the officers and searches were conducted. The police force practice, which he followed, was to secure such tapes and copies in locked premises. [56] William McCoy was interviewed on December 21, Mr. Gunn s notes indicate that he was asked whether there was any possibility that Monaghan and Schlosser could have said anything about the murder which would not have been picked up by the transmitters, and he answered that it was possible. He further advised the Crown appeal counsel that the receivers would not have picked up anything said in and around the safe, which was in the back of the building, as the conversation would have been muffled. At another point in the notes McCoy is noted as saying that the quality of the transmitter in the office area was good but that the parties were not close to it for more than ten to 15 seconds according to his recollection, and that the conversation in the back area was muffled. At another point he indicated that the parties were not in the back area of the donut shop for very long. At another point he indicated that there were two tapes, one from the restaurant area and one from the office area. He is noted as admitting that the quality was not very good when the participants entered the rear of the building as they were too far from the transmitter located in the office. At another point he is noted as saying that the conversation became muffled as the two walked back to the rear of the building. He is noted as saying that he could swear that he made a copy the following morning of the tape recorded in the store part of the building, but was unable to recall if he had made a copy of the tape from the rear of the building because of the poor quality of the transmission from that area. He is also noted as saying that there were many searches for the lost tape, and that periodically the issue came up and that they looked around for the tapes at different times as MacMillan pushed them to do so. [57] Detective Harris was interviewed on December 22, He is noted as indicating that he participated in searches for the tape with Officer Moore. He indicated he did not remember when the tapes went missing or when he first found out, but he recalls searching for them and indicated that he never saw or listened to the tape after November 29, [58] During the interview, Harris was noted to have said that obviously, at some point, the Crown must have been told (could have been MacMillan) and that there were a number of conversations with respect to the tape. He then indicated that he could not so swear or remember, but that he thought it was during the period of the trial. When questioned about his

17 evidence at the April 15, 1991 pre-trial motion when he was questioned by Levy about the tape, Harris is noted as answering that if he had known the tape was missing he would have told Levy if he was specifically asked, but he would not have volunteered anything. [59] Detective MacMillan was interviewed on January 10, 1995, when asked whether he knew the tape was missing, he is noted as indicating that he recalled a tape being out there, that it was not a major issue because it was not evidence, and that Stunt was not concerned about it because it was not an issue to the prosecution. He recalled conversations with Moore about the tape, either during the voir dire or the trial. He indicated that at some point during the trial, or the pre-trial motion he became aware that a tape had been misplaced. He further indicated that the tape was not a concern to the Crown. [60] Neither Ms. Manarin nor Mr. Gunn recall there being any follow-up questioning in response to Harris remark that it was obvious at some point that the Crown must have been told, and that it could have been MacMillan, and that there were a number of conversations with respect to the tape. [61] The written notes kept by appellate Crown counsel demonstrate that they considered whether or not Gunn s notes of the police interviews ought to be disclosed. The evidence indicated that they consulted with other counsel in the Crown law office and concluded that they need not be. The evidence before me indicates that one thought was that they were work product, and a second line of thought was that everything the officers could be sure of was placed in the affidavits, which obviously in turn were provided to the defence. [62] With respect to their decision, I cannot agree with it and conclude that these notes of Mr. Gunn s made during the interviews with the police officers ought to have been disclosed to the defence. They were not in my view work product, as they were notes of interviews with the officers made during interviews on the very issue by then seen to be very important to the appeal. They were not work product in the sense of being any written record of the thought processes or considerations of the Crowns in the preparation of the case, but rather were original interviews with witnesses known to have information relevant to the appeal issues. In my opinion the continuing nature of the disclosure obligation carries through the appeal process. In my opinion the notes of these interviews were relevant and of value to defence counsel had they been produced prior to the officers being cross-examined. While the affidavits were restricted to matters to which the officers could swear with certainty, within the

18 notes the officers expressed additional beliefs, some of which were not further explored in terms of the foundation for such beliefs. Had the notes been disclosed, I am confident they would have been useful to the defence in cross-examining on relevant issues. [63] In my view, there was a disclosure breach, and accordingly a ss. 7 and 11(d) Charter breach. Indeed, Crown counsel before me concede this. [64] Concerning the issue of whether trial Crown counsel knew the tape was missing, the Crown law office decided to make inquiries directly of Mr. Stunt and Mr. Cornish, rather than questioning the police as to whether trial Crown counsel were aware. On November 1, 1994 Ms. Cooper telephoned Mr, Stunt who indicated that he wanted to review his file and that he would get back to her. On November 2, 1994 she wrote Mr. Stunt forwarding copies of the defence affidavits with respect to the lost tape issue and requested his assistance. On November 30, 1994 Ms. Cooper wrote Mr. Stunt and forwarded to him a copy of a page from the October 15, 1991 transcript of discussions with the trial judge as to various issues, on which page Mr. Levy had raised disclosure issues. That transcript indicates that Mr. Stunt acknowledged he had received a letter from Mr. Levy concerning disclosure shortly before the attendance before the trial judge. Ms. Cooper asks Mr. Stunt to look for that letter when he reviewed the file. [65] The only reply from Mr. Stunt was a letter dated November 17, 1994 indicating that he would review his file and get back to Ms. Cooper, and in effect bragging as to the proficiency of the Milton Crown office in obtaining a conviction on such limited evidence. [66] Before me, Ms. Cooper confirmed that Mr. Stunt never did get back to her as to whether he knew the tape was missing, and has never explained why. [67] Ms. Cooper acknowledged before me that she considered whether or not she should disclose the information regarding her inquiries of Mr. Stunt, and his lack of response, but that she concluded that it need not be disclosed as the defence had not raised the issue of Crown knowledge that the tape was missing. She further testified on this issue that her letter to Mr. Koziebrocki forwarding the police affidavits on the fresh evidence application mentioned that she had had some contact with Mr. Stunt, and she testified that Mr. Koziebrocki never followed up by requesting any information with respect to his possible knowledge.

19 [68] Before me she was asked whether she thought it would be relevant to the appeal if she had had evidence that Stunt knew the tape was missing and answered that she was not really sure that would be a factor on the appeal. [69] Inquiries were also made by Crown law office counsel of Mr. Cornish as to whether he knew the tape was missing. While the notes of such conversations are now somewhat ambiguous, and in a sense perplexing, Ms. Manarin is now unable to recall why she made certain entries in her notes of the conversation. She is adamant however that Mr. Cornish disclaimed any knowledge that the tape was missing, even though she made no note of that in any definite way in her memorandum. I have no evidence that Mr. Cornish knew. [70] While the defence may not have expressly raised the issue of possible trial Crown knowledge that the tape was missing, in my view the issues on the fresh evidence application certainly made any such knowledge relevant. The Crown law office was left with a denial by Mr. Cornish, and a simple lack of response from Mr. Stunt. In my opinion it would have been preferable to have disclosed the information to defence appeal counsel, but I am not prepared to conclude that at that stage it constituted a disclosure breach. [71] Following the Court of Appeal s direction for a new trial, the defence launched their applications for a stay of proceedings, and within those applications it was obvious, from the outset, to all that the lost tape issue was important, and that Crown knowledge of the lost tape was important. In my opinion, there was non-disclosure of relevant material during the original applications for a stay of proceedings, at which Mr. Stunt testified on this issue amongst others. While the Officers Harris, McCoy and Moore were not called to give evidence, that decision was based on an agreement to utilize their affidavits and cross-examinations before the Court of Appeal. If the information available in Mr. Gunn s notes of the police interviews had been disclosed to defence appeal counsel, in my opinion it is probable that that information would have been incorporated into the cross-examination, and the result would be that further information would have been available in the form of the transcript of the crossexamination for use by the defence before me. Additionally, if this information had been disclosed during the applications before me, it may well have, and likely would have led to the officers being called to give viva voce evidence, and would have led to further crossexamination before me of Mr. Stunt.

20 [72] Following the appeal the Crown law office made known to the Milton Crown s office that materials within their file in respect of the appeal were available to the Milton Crowns. Indeed, Mr. O Marra was involved in the fresh evidence application to the extent of participating in cross-examinations on affidavit material, and the evidence before me shows frequent contact between members of the Crown law office and members of the Milton Crown s office. Indeed, a representative of the Milton Crown s office attended at the offices of the Crown law office in Toronto to review their file. Ms. Cooper was aware that applications for a stay of proceeding had been brought before me as the new trial judge, but has testified she was unaware of the specific issues included within those applications and hence did not bring forward any information from her files that might have been relevant. [73] While it has been explained to me that there is a lack of any system or routine through which information is shared as between the Crown law office and trial Crowns on a particular file, in my opinion the Crown must be viewed as one entity in the context of disclosure issues. [74] In my opinion the failure to disclose the evidence from within the Crown law office file to the defence, by the present Crown counsel, prior to or at least during the hearing of the stay applications before me constitutes non-disclosure, as the evidence was relevant and material, and given Carosella, constitutes a breach of ss.7 and 11(d). [75] While the lost tape issue pertains particularly to Monaghan, as Mr. Pinkofsky has rightly argued, it is also relevant to Court in that any such inroads to Schlosser s credibility enure to Court s benefit as well as Monaghan s. [76] Even after Ms. Cooper s affidavit on the s. 11(b) issue had been delivered, and disclosure of items contained therein was requested, the Crown law office left it to the Milton Crowns to review the appeal materials to see what should be disclosed. That was done, but even then full disclosure was not made initially, and the materials were only disclosed in stages as new items were mentioned as Ms. Cooper, Ms. Manarin and Mr. Gunn testified. As a result, their testimony was prolonged as additional materials were obtained, and Ms. Cooper had to reattend a second time to answer questions about newly disclosed material. [77] In the result, on this lost tape issue, I maintain my finding of ss. 7 and 11(d) breaches at the first trial, and find that such breaches occurred during the appeal process, and